In yesterday’s post, we asserted that the recent denial of a downtown housing project in San Francisco portends a generational clash of super-statutes, with the California Environmental Quality Act (CEQA) facing off against the state’s Housing Accountability Act (HAA). In subsequent posts, we will explore the particulars of the CEQA-HAA conflict, as illustrated by the saga of the San Francisco project. Today, however, our goal is simply to show that CEQA and the HAA both have plausible claims to being super-statutes, which is what makes the clash between them so arresting.
Recall Eskridge and Ferejohn’s definition. A super-statute is a law that:
(1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute.
The first half of today’s post explains how CEQA became a superstatute in the 1970s, and muscled a precursor of the HAA into near-oblivion. The second half takes up the HAA and shows how it’s becoming “super” today.
The California Environmental Quality Act
Enacted in 1970, a year after Congress passed the National Environmental Policy Act, CEQA heralded a transition from Governor Pat Brown’s California -- a land of burgeoning highways, dams, and suburbs – to the slow-growth California that his son, Jerry, would preside over. Whether the Legislature intended CEQA to be a super-statute is open to debate, but, looking back, it’s clear that CEQA did “establish a new normative [and] institutional framework for state policy,” and that the framework “stuck in the public culture” and had “a broad effect on the law.”
Two early judicial decisions launched CEQA on its path to super-ness. In Friends of Mammoth v. Bd. of Supervisors, the California Supreme Court gave a “broad interpretation to the act's operative language” and extended CEQA to cover private activities (such as homebuilding) that require public permits. Next came No Oil, Inc. v. City of Los Angeles, which held that CEQA requires preparation of a full environmental impact report “whenever it can be fairly argued ... that the project may have a significant environmental impact,” not just where the project is likely to have “important” or “momentous” impacts.
Beyond their immediate holdings, Friends of Mammoth and No Oil stood for a larger principle: that CEQA should be construed broadly and purposefully to give “the fullest possible protection” to the environment. Although the Legislature has often tinkered with CEQA, it hasn’t challenged this foundational maxim, which courts continue to invoke to this day.
CEQA has certainly had a “broad effect on the law--including an effect beyond the four corners of the statute.” The best example is the courts’ reliance on CEQA to disembowel the Permit Streamlining Act of 1977 (PSA), which was something of a precursor to the Housing Accountability Act.
The PSA originally required cities to approve or deny applications for a “development project” within one year of receiving a complete application, on pain of the project being “deemed approved” as a matter of law. The Act did not expressly state that an agency’s failure to complete environmental review within the one-year period would result in the project’s constructive approval, but everything about the statute suggests that this was the Legislature’s intention.
Yet when courts confronted the question of whether a development project could be deemed approved by operation of the PSA notwithstanding the agency’s failure to complete and certify an environmental impact report, they answered with a perfunctory no. Automatic approval in such circumstances would be an unthinkably “drastic” result, the Court of Appeal said, and because the Legislature “did not mention EIR certification in the [PSA’s] automatic approval provisions,” the court refused to countenance it. The gravitational pull of the superstatute, CEQA, overwhelmed what should have been a fairly easy inference from the text and structure of the PSA.
In a later case, the Court of Appeal held that CEQA’s time limits could be enforced by mandamus -- if a city sits for years on a completed environmental impact report without taking official action to certify or disapprove it. But this gesture at the enforceability of the one-year deadline for completing EIRs was gravely undermined by another Court of Appeal decision, Schellinger Bros. v. City of Sebastopol. Schellinger held that courts may not order a city to certify an environmental impact report (as opposed to ordering the city to make up its mind about whether to certify it). Even more damningly, Schellinger held that the project applicant had, by cooperating with the city well past the one-year deadline, forfeited its right to enforce CEQA’s deadlines.
Nowhere did Schelleinger acknowledge that developers have an obvious economic incentive to cooperate with cities that exercise discretionary authority over their projects. That the court’s decision had the practical effect of nullifying the PSA for any project that requires an environmental impact report also went unmentioned. The pull of the superstatute had sucked the guts out of the PSA.
The Housing Accountability Act
The HAA was far from super as enacted in 1982. It originally consisted of just two short paragraphs telling local governments to approve zoning-compliant housing projects unless the project would injure public health or safety. A 1990 amendment added additional protections for affordable projects (today defined as 20% low-income or 100% moderate income). Among other things, the amendment stipulated that a city may rely on its general plan or zoning to deny an affordable project only if the city has adopted a state-approved “housing element” to accommodate regionally needed housing.
Subsequent tweaks to the HAA (1) disallowed local governments from denying zoning-compliant projects except on the basis of written health or safety standards; (2) defined projects as zoning-compliant if they satisfy the objective standards found in the city’s zoning code and general plan as of the date of the developer’s project application; (3) cracked down on certain obvious ruses, such as cities defining zoning-code violations as a health-and-safety violation; (4) required cities that wrongfully deny an affordable project to pay the prevailing party’s legal fees; (5) authorized courts to compel cities to take action on a wrongfully denied project within 60 days; and (6) authorized courts to fine cities that deny projects in bad faith and continue dilly-dallying after the court’s order.
All of this sounds pretty super, but if the test for a superstatute is that it “sticks” in “the public culture” and “has a broad effect on the law,” then the HAA did not become a serious superstatute candidate until 2016-2017. There had been very few reported cases under the statute, most likely because developers who hope to do business with a city in the future are generally reluctant to sue it. In 2015, however, a ragtag bunch of self-described “Yimbys” coalesced in San Francisco, discovered the HAA, and started suing suburbs for denying regionally needed housing. It wasn’t entirely clear whether they even had standing, but the Legislature answered their call and authorized HAA enforcement by “housing organizations.”
A year later, in 2017, the Legislature enacted a pair of bills that dramatically strengthened the HAA and declared it to be super. Assembly Bill 1515 took up the question of what it means for a housing project to comply with general plan, zoning, and design standards. The courts had long given deference to cities on such matters, refusing to set aside municipal determinations that a project is noncompliant if any reasonable person could agree with the city’s conclusion. AB 1515 turned that doctrine on its head, defining projects as compliant as a matter of law if any reasonable person could deem the project to comply on the record before the city – notwithstanding reasonable or even strong arguments going the other way.
A companion bill, SB 167, required cities to give prompt written notice to developers of any zoning, general plan, or design standard that the proposed project violates, on pain of the project being deemed to comply as a matter of law. SB 167 also narrowed the HAA’s carveout for health and safety standards, requiring cities to show by a preponderance of the evidence that the health or safety standard in question would in fact be violated by the project. Finally, SB 167 codified numerous Legislative findings, include this:
The Legislature’s intent in enacting [the HAA] in 1982 and in expanding its provisions since then was to significantly increase the approval and construction of new housing … by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.... That intent has not been fulfilled.
It is the policy of the state that this section be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of, housing.
A year later, the Legislature added this:
It is the intent of the Legislature that the conditions that would have a specific, adverse impact upon the public health and safety [within the meaning of the HAA] arise infrequently.
In 2019, the Legislature codified a preliminary application process, allowing developers to quickly establish the date on which the zoning, general plan, and health and safety standards applicable to their project would be locked. The Legislature also spelled out what it means for a standard to qualify as objective, such that it may be used to deny or reduce the density of a housing project.
All of this certainly evinces a legislative intent to forge a superstatute, but whether the HAA “‘stick[s]’ in the public culture such that ... its institutional or normative principles have a broad effect on the law” ultimately depends on how other actors respond to it. Will the courts, the executive branch, and local governments also treat the HAA as super?
In September of 2021, the pumped-up HAA passed its first judicial test with flying colors. The City of San Mateo had denied a small condo project on the basis of the city’s Multi-Family Design Guidelines, which prescribe “a transition or step in height” between new multifamily buildings and adjoining single-family homes. When a nonprofit housing organization challenged the project denial in court, San Mateo argued that the HAA violated its right to “home rule” under California’s constitution and the prohibition against delegation of municipal authority. In the alternative, the city asserted that the HAA’s definition of project compliance left intact the tradition of judicial deference to cities on questions about the meaning of local ordinances, and that the city in denying the project had plausibly “interpreted” its Design Guidelines to require setbacks the project lacked. A trial court accepted the city’s home-rule and statutory arguments, but the Court of Appeal would have none of it.
Before the appellate court, San Mateo and local government amici mustered new constitutional attacks on the HAA -- not just home rule and private delegation, but due process too. It would have been easy for the Court of Appeal to dodge the new issues, but the court reached out and decided all the constitutional questions – against the city – thereby securing the HAA’s footing going forward. The appellate court also carefully traced the evolution of the HAA, juxtaposing it against the seeming intractability of California’s housing shortage. It concluded, “The HAA is today strong medicine precisely because the Legislature has diagnosed a sick patient.”
The Legislature’s instruction that the HAA “be interpreted and implemented in a manner to afford the fullest possible weight to … housing” was reiterated three times in the court’s opinion.
As for San Mateo’s design guidelines, the Court of Appeal held that they were not objective, and, in the alternative, that a reasonable person could deem the project at issue to comply with them. Hard-eyed independent judicial review, not deference, was the order of the day. “It [would be] inappropriate to defer to the City’s interpretation of the Guidelines,” the court explained, lest the City “circumvent what was intended to be a strict limitation on its authority.”
CaRLA v. City of San Mateo is only one case, of course, but other actors in California’s legal-political establishment are also embracing the HAA and signaling that they want it to have “a broad effect on the law.” After the trial court in CaRLA v. San Mateo struck down the HAA, Attorney General Becerra announced that his office would intervene on appeal. When the Court of Appeal’s decision came down, new AG Bonta put out a press release trumpeting the big win.
Last summer, the Governor requested and the Legislature authorized funding for a new Housing Accountability Unit within the Department of Housing and Community Development. Fully staffed, the HAU will be a 25-person team that investigates alleged violations of state housing law, sends warning letters to cities, and makes referrals to the AG’s new “housing strike force.” The HAA is not the only housing law the HAU and the strike force will enforce, but it is the capstone, and the fact that these new enforcement capabilities came together in the shadow of CaRLA v. City of San Mateo suggests that the HAA is in fact bringing about “a new normative [and] institutional framework for state policy,” one which will “stick in the public culture” and have “a broad effect on the law.”
The acid test is now at hand. A day after San Francisco’s Board of Supervisors stalled the 469 Stevenson St. project – voting to require further environmental study while treating the vote as a project denial – the director of the state housing department announced that the Housing Accountability Unit had launched an investigation. Is the HAA super enough to stand up to CEQA? Or will it tumble like its precursor, the Permit Streamlining Act? That is the subject of our next post.